Both the statute and the regulations reflect Congressional intent that EPA "may not act where the party responsible for the release or threatened release . . . will take proper action." H.R. Rep. No. 1016, Part 1, 96th Cong., 2d Sess. reprinted in 1980 U.S. Code Cong. & Ad. News 6119, 6133. (Emphasis added.) When CERCLA was originally enacted, its principal House sponsor, Representative Florio, stated in the floor debate:

[as to] apprehensions [that] EPA is going around to automatically start cleaning things up and suing someone. That situation is not going to occur because EPA is required not to act if the responsible party or parties will take appropriate action to cleanup and contain these sites.

The President shall select appropriate remedial actions determined to be necessary to carry out this section which are to the extent practicable in accordance with the national contingency plan and which provide for that cost-effective response which provides a balance between the need for protection of public health and welfare and the environment at the facility under consideration, and the availability of amounts from the Fund established under subchapter II of this chapter to respond to other sites which present or may present a threat to public health or welfare or the environment, taking into consideration the need for immediate action.

Section 105, 42 U.S.C. § 9605, requires that the NCP include:

(2) methods for evaluating, including analyses of relative cost, and remedying any releases or threats of releases from facilities which pose substantial danger to the public health or the environment;

. . . .

(7) means of assuring that remedial action measures are cost-effective over the period of potential exposure to the hazardous substances or contaminated materials.

A principal purpose of the provisions requiring that a responsible party undertake the removal or remedial action if feasible and requiring that such undertakings be accomplished at a minimum cost is to preserve the Removal Fund so as to maximize the number of hazardous sites which will be cleaned up.

When it is necessary for EPA to effect curative action CERCLA contemplates that monies expended from the Fund for cleanup will, where possible, be recovered from "responsible parties" through the liability provisions set out in Section 107, 42 U.S.C. § 9607. See generally State ex rel. Brown v. Georgeoff, 562 F. Supp. 1300, 1308 (N.D. Ohio 1983).

Section 107(a) of CERCLA imposes liability for the costs of response activities upon the persons responsible for the releases of hazardous substances. The United States may recover such costs, if "not inconsistent with the National Contingency Plan," from:

(1) the owner or operator of the site;

(2) any person who owned or operated the site at the time hazardous substances were disposed of at the site;

(3) any person who arranged to have his own wastes taken to the site for disposal or treatment; and

(4) any person who transported wastes for disposal or treatment to a site he selected.

42 U.S.C. § 9607(a). Liability under this section is subject to three defenses: an act of God, acts of war, or certain acts or omissions of third parties. Section 107(b), 42 U.S.C. § 9607(b).

III. The Basis of Plaintiffs' Claims

Plaintiffs allege that EPA's adoption of the ROD violated various of these statutory and regulatory provisions. To set plaintiffs' contentions in focus, a summary of the events which led to the present litigation would be useful.

Lone Pine is a landfill located in Freehold, New Jersey. For many years it was used legally for the disposal of both municipal and industrial wastes. There came a time when it was closed for the purpose of receiving industrial waste, but it was still authorized to receive municipal waste and septic sludge. During that time very substantial amounts of chemical waste was dumped at Lone Pine illegally. In 1979 Lone Pine was closed altogether. However, by that time it posed a serious threat to local residents, wells and the proposed use of the Manasquan River as a source of drinking water. Pursuant to Section 105 of CERCLA, 42 U.S.C. § 9605, EPA ranked Lone Pine to determine whether it was one of the most serious waste sites in the nation and, therefore, eligible for money made available under CERCLA. Lone Pine has consistently been ranked among the fifty worst sites in the United States.

In 1981 and 1982 EPA, along with the New Jersey Department of Environmental Protection (DEP), pursued various studies and investigations seeking to ascertain the extent of the contamination emanating from the site and to determine the potential threat to public health and the environment.

On July 6, 1982 EPA sent "notice" letters to fourteen companies informing each one that it "may be a responsible party with respect to the releases and threatened releases" of hazardous substances from the Lone Pine site. The fourteen companies included five of the six corporate defendants in this action. On September 3, 1982 a notice letter was sent to plaintiff Coca-Cola Company. EPA requested each company to perform a feasibility study evaluating remedial alternatives for the landfill and other response activities.

No private party committed itself to undertake the work, and EPA proceeded to take steps in anticipation of doing the work itself. It held a public hearing on September 16, 1982 and conducted additional extensive studies.

Alternative 1, landfill capping and location monitoring, would likely reduce the contaminant source input to the groundwater, but implementation of this alternative is also problematic. The purpose of the monitoring system is to provide early warning relative to the presence of a substance that would potentially cause a hazard and to provide a measure of effectiveness of the remedial scheme that has been implemented. Since these contaminants would have a potential impact on the downstream water supply, contingency plans must be prepared. These would include plans and specifications for a groundwater and leachate treatment system. These design documents and the appropriate funding mechanism provide a means for rapidly installing a groundwater treatment system. Based upon these concerns, Alternative 1 was eliminated from further consideration.

EPA extended the initial public comment period until August 1984 and held another public meeting on August 1, 1984, at which time the Steering Committee presented its remedial proposal.

Meanwhile, following receipt of the Supplemental Feasibility Study, the Steering Committee directed its consultants to prepare a remedial action plan that would address CDM's concern about the need for a detailed contingency plan to back up a cap and monitoring program. In July and August 1984, the Steering Committee and its consultants also met with local citizens' groups to solicit their comments and input into the preparation of a comprehensive remedial plan.

On September 12, 1984, EPA sent notice letters to approximately 142 companies, including corporate plaintiffs, notifying each company of its statutory right to undertake proper remedial action which EPA proposed be done at Lone Pine prior to EPA's (a) use of federal "Superfund" monies for remedial action, and (b) subsequent cost recovery action against it. EPA advised that it proposed to proceed with the alternative recommended by CDM and asked each recipient to advise it of the portions of those corrective measures which the recipient was willing to undertake. EPA requested a response by September 26, 1984.

On September 28, 1984, two days after plaintiffs' Plan and non-offer to perform it was submitted, EPA's Assistant Administrator signed the Record of Decision. The ROD chose an initial source containment strategy at Lone Pine involving the installation of a clay cap over the landfill, a shallow subsurface cutoff wall known as a slurry wall, and extraction wells inside the wall for hydraulic reasons. EPA also determined that additional investigative studies would be undertaken to delineate the extent of offsite contamination and to assess the need for further action. Unless responsible parties undertake to complete EPA's plan, which seems unlikely, this plan will be paid for at public expense with the expectation that EPA will later seek reimbursement pursuant to Section 107 of CERCLA, 42 U.S.C. § 9607.

Plaintiffs charge that "EPA totally ignored Plaintiffs' Plan. Only two days after receipt of the Plan, with no opportunity to accord the Plan even cursory review, EPA issued its ROD 'selecting' the alternative proposed by CDM -- a cap, slurry wall and groundwater pumping and treatment system." (Plaintiffs' Memorandum of Law in Support of Motion for Preliminary Injunction at p. 8). Of course, the Steering Committee had expressed to EPA its preference for and its reasons for advocating its more limited concept during the course of its comments upon the June 1983 Draft Feasibility Study, in response to the June 27, 1984 Supplemental Feasibility Study and on various other occasions. A more detailed study of the record will be required to determine how much of substance was added by the September 26, 1984 submission.

The language used in the Act itself demands a speedy response in cleaning up dangerous sites. For example, the Act authorizes responses if there is a "substantial threat of release," thereby recognizing that speed of response outweighs certainty of damage under the Act. Section 104(a)(1), 42 U.S.C. § 9604(a)(1). The Hazardous Substance Response Trust Fund ("Fund") was established to enable response activities to begin expeditiously, rather than having to await the outcome of litigation.

To follow the course which plaintiffs suggest and to allow judicial review of the ROD at this juncture would totally frustrate one of the major objects of CERCLA -- prompt action to clean up highly threatening waste sites. Plaintiffs urge that review should be de novo. That, of course, would require a lengthy trial in this court with the possibility of an appeal. Even a judicial review of the EPA action simply on the record before the agency would entail extensive activity in this court and again the possibility, or even likelihood, of a time consuming appeal. Meanwhile with every passing rainstorm and each day while melting snow percolates through the Lone Pine Landfill deadly chemical wastes would be carried towards the water supplies of substantial numbers of people.

In their papers seeking injunctive relief and in their arguments before the court, plaintiffs have presented a distorted version of the true state of affairs. They suggest that on September 12, 1984 EPA for the first time notified potentially responsible parties of their right to undertake remedial action at Lone Pine; that on September 26, 1984 the Steering Committee, in response to that letter, submitted a detailed plan for effective remedial action and offered to assume complete financial responsibility for putting it into effect; and that on September 28, 1984, without even considering the Steering Committee plan, EPA issued its ROD which adopted the CDM alternative discussed above and committed EPA to undertake the remedial action at public expense.

Inclusion of a facility or site on the list does not itself reflect a judgment of the activities of its owner or operator, it does not require these persons to undertake any action, nor does it assign liability to any person. Subsequent government action in the form of remedial action or enforcement action will be necessary in order to do so, and these actions will be attended by all appropriate procedural safeguards.

Id. at 60. (Emphasis added.)

Plaintiffs argue that since remedial actions already are subject to time consuming requirements the imposition of the additional delays occasioned by judicial review will not impede the purpose of CERCLA. I cannot agree. CERCLA contemplates that remedial action will be taken as promptly as circumstances permit. It should be obvious that every day's delay in dealing with a hazardous waste site entails risks. Just because unavoidable delays are required to plan and implement a response does not mean that Congress contemplated the additional delays which judicial review would entail.

This conclusion is fortified by the fact that in the circumstances of this case the statute provides an opportunity for responsible parties to contest EPA's actions before they are obligated to pay anything. Section 107(a) of CERCLA provides the time and the place where EPA can seek reimbursement and where an allegedly responsible party can resist the claim. Plaintiffs urge that their rights under Section 107(a) are inadequate. That being the case, they argue, Section 107(a) cannot have been intended by Congress to be a substitute for judicial review of a ROD, and, if it were, it would violate plaintiffs' due process rights.

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